Private Nuisance

Question 1

Private Nuisance is…

Answer 1

An unlawful interference with a person’s use or enjoyment of the land, or some right over or in connection with it.

Question 2

Elements of Private nuisance

Answer 2

1. title to sue
2. interference with a legally recognised right
3. Damage

Question 3

Who is liable?

Answer 3

The defendant does not need to have propriety rights in the land from which the nuisance emanates.
Where an owner adopts or continues a nuisance, they are liable.
A defendant is said to adopt a nuisance if he makes any use of the thing which constitutes a nuisance.

Question 4

Defences to private nuisance

Answer 4

statutory authorisation
Contributory negligence
Consent
Necessity

Question 5

Statutory authorisation

Answer 5

where an act of parliament expressly or impliedly authorises the creation of a nuisance, it is a proper defence.
Defendant authorised by statute. Clear intention to take away right to sue in nuisance (Allen v Gulf Oil Ltd). In order to be actionable, defendant would have to prove that the nuisance was an inevitable consequence of performance of the statutory duty or exercise of power. (York v Commissioner for Main Roads).

Question 6

Misfeasance

Answer 6

(a Positive act), traditionally, the defendant is liable even if reasonable care was taken.
Law in Australia is not clear but traditionally the defendant is liable even if they took reasonable care.

Question 7

Non-feasance

Answer 7

(failure to act) defendant is liable at fault (also if failed to take reasonable care).

Question 8

Title to sue

Answer 8

• plaintiff is said to have title to sue if they have more possession over the land than the defendant.
• cannot be a mere licensee
• owner and legal tenant are said to be in possession.

Question 9

Interference with a legally recognised right

Answer 9

(right to entry to land, right to support of land, right to use and enjoy land freely).

• There is no right to light or views.
• There is no right to not be spied on by neighbours.
• The essence of nuisance is the decline of the use and enjoyment of land. Therefore, cannot claim loss of profits as nuisance.

Question 10

Damage

Answer 10

(either material or substantial).
Use Munro tests = locality, time and duration, alternative means, defendant’s motive, abnormal sensitivity, nature of activities).
- Did the nuisance cause the damage?
- Was the damage a foreseeable consequence of the nuisance (e.g. loss of sleep when nuisance is a loud noise).

Question 11

Onus

Answer 11

Plaintiff proves unreasonable then defendant proves it was reasonable.
- Onus is mainly on the plaintiff

Question 12

Contributory negligence

Answer 12

Plaintiff contributed to the nuisance (damages will be reduced).

Question 13

Necessity

Answer 13

(threat or imminent harm, reasonably apparent necessity to act, defendant not at fault)

Question 14

Remedies

Answer 14

Abatement
Damages
Injunction

Question 15

Abatement

Answer 15

self-help remedy. Allows someone to take necessary steps to stop or prevent a nuisance.

Question 16

Damages

Answer 16

compensatory damages (compensate for the material damage to the property or compensate for the interference with the use and enjoyment of land).

Question 17

Injunction

Answer 17

can be used when it is a continuing nuisance and where damages are not adequate. However, plaintiff would have to prove that damages are not adequate.

Question 18

Time limitation

Answer 18

• If material damage or interference with use and enjoyment there is a 6 year limitation. (Limitation of Actions Act 1974 Qld s 10)
• If personal injury there is a 3 year limitation (Limitation of Actions Act 1974 Qld s 11)